Lawsuit May Have Driven Vista Virtualization

Recently surfaced court papers suggest that Microsoft's change of heart earlier this year to open up Windows Vista virtualization licensing may have been influenced by litigation.

According to a federal court document dated March 7, 2008, the change appears to be driven at least in part due to legal pressure from Milpitas, Calif.-based BIOS maker Phoenix Technologies.

Phoenix had complained that the terms of Microsoft's end user agreement (EULA) for the lower cost versions of Windows Vista (Home Basic and Home Premium) would impede the running of those OS versions on Phoenix's virtualization software. Moreover, Phoenix complained that the EULA would deter OEMs from adding its software to new PCs.

The complaint is described in "Joint Status Report on Microsoft's Compliance With the Final Judgments," which describes a federal-state class-action lawsuit against Microsoft. It's a follow-on effort to the Final Judgment antitrust legislation against Microsoft, which technically was settled in 2004 but has an extension to 2009 concerning communications protocols.

The matter was resolved to Phoenix's satisfaction, according to the court document. "After discussions with Plaintiff States and the TC [Technical Committee], Microsoft agreed to remove the EULA restrictions and has done so," the document stated.

The product involved apparently was Phoenix's Linux-based hypervisor called HyperSpace, according to an account by Gregg Keiser of ComputerWorld.

Microsoft first disclosed to the public that it had opened up Home versions of Vista to virtualization on January 21. That move came just months after Microsoft had publicly flip-flopped on whether or not to open it up.

The way in which Microsoft explained -- or didn't explain -- its reasoning for opening up Vista caused veteran Microsoft watcher Mary Jo Foley to question the sincerity of Microsoft openness pronouncements, like its recent interoperability pledge giving access to APIs and protocols. She noted on her All About Microsoftblog that Microsoft has tended to obscure other legal losses with public pronouncements of being more open.

For instance, Foley noted that Microsoft's interoperability pledge was published a week before the European Commission slapped Microsoft with a $1.3 billion fine for overcharging vendors for its interoperability protocols.

Opening up virtualization for the lower priced copies of Vista isn't wholly outside of Microsoft's bottom-line interests. A Virtualization Reviewarticle pointed out that "each virtualized copy of Vista requires a license, meaning more money in Redmond's licensing coffers."